Can members of Al Qaeda use voice over Internet technology (VoIP) to
avoid wiretaps?

Recent comments by Michael McConnell, Director of National
Intelligence, seem to suggest that terrorists could create significant
roadblocks for the National Security Agency by simply routing their
traffic through the U.S.

Mike McConnell: I'll have some of what he's smoking,
Office of the Director of National Intelligence

The incongruously named Protect America Act of 2007 gutted the existing Foreign
Intelligence Surveillance Act (FISA), and allowed the National Security
Agency to significantly expand its surveillance powers. It's set to
expire in February, and the Administration is looking for reasons to
justify extending the law. With perfect timing, Michael McConnell,
Director of National Intelligence, has come to the rescue.

"McConnell said that federal
judges had recently decided, in a series of secret rulings, that any
telephone transmission or e-mail that incidentally flowed into U.S.
computer systems was potentially subject to judicial oversight.
According to McConnell, the capacity of the NSA to monitor foreign-based
communications had consequently been reduced by 70 percent."

Conveniently enough, if Congress passes legislation to further gut
FISA, the NSA will be able to resume its warrantless snooping on the
terrorists, the troops will be safe, global warming will cease to be a
problem, and no more puppies will have to die.

While the average privacy geek would consider an NSA wiretap of an
undersea fiber-optic cable carrying millions of phone calls to be
surveillance, it . As per the existing FISA rules,
anything the NSA does outside of the U.S. does , and thus does not require a
warrant. Thus, any wiretapping that happens in Iraq will never require
approval of the FISA court, with or without any new legislation being
passed.

AT&T and the NSA: best friends forever
Electronic Frontier Foundation

(I'm not the only one to call bs on McConnell's claims. Wired's
Ryan Singel is offering a $1,000 wager that "when and if those rulings
are ever released, we'll see they say no such thing." Clearly, the pay
over at Wired is far better than CNET. While I can't offer the same
level of money as Ryan, if McConnell does turn out to be telling the
truth, I'll promise to switch my telephone service to AT&T--thus sending
a little bit of money to the NSA's best friend forever.)

However, for the purposes of this blog post, let's assume that McConnell is in fact telling the truth. Let's assume that a phone call
between two members of Al Qaeda in the Middle East that happens to flow
through a U.S.-based server automatically kicks in a requirement that the
NSA get a FISA warrant before it can listen in--even if the tap is
conducted in Iraq, or under the Atlantic Ocean.

It's not surprising that this would be alarming to the NSA. In a
previous interview, McConnell claimed that . Were every member
of the Iraqi insurgency to route his communications via the U.S., the NSA
would presumably become the largest law firm in the world.

Which brings me to the point of today's blog post. If McConnell is to
be believed, Al Qaeda merely needs to switch to using U.S.-based voice
over IP services, and it can immediately crush the NSA under a pile of
FISA paperwork. No matter where the NSA actually tried to intercept the
Internet-routed phone call, a FISA warrant would be required. For $24.99
a month per terrorist, Al Qaeda could launch a gigantic legal denial of
service against the folks at Fort Meade. Furthermore, now that the iPhone
has , the VoIP-subscribing terrorists could communicate
in style.

Of course, the problem with using most commercial VoIP solutions is
that phone calls flow over the wire in the clear, making it trivially
easy for our spooks to listen in once they've dealt with that pesky
matter of the warrant. Thus, any smart terrorist worth his salt would
most likely use encrypted VoIP software, such as the uber-fantastic Zfone project, which can be had for free.